%k trei/2 states · 12/11/1972 · he used the same degree of measurement from post 70 to 71 until...
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UidKARY SUPREME court, U. S',
c iP o r
In the
Supreme Court of \%k
£Mi %!SUPREME COURT, U
V E D;c U.RT, U.S3 OFFICE
trei/2 states
STATE OP MICHIGAN, ))
Plaintiff, ))
v. ))
STATE OF OHIO, ))
Defendant. )
No. 30, Original
Washington, D, C. December 11, 197?
Pages 1 thru 22
Duplication or copying of this transcript by photographic, electrostatic or other facsimile means is prohibited under the
order form agreement.
HOOVER REPORTING COMPANY, INC.Official "Reporters
Washington, D. C.546-6666
IN THE SUPREME COURT O? THE UNITED STATES
STATE OF MICHIGAN,
Plaintiff,
v.
STATE OF OHIO,
x
No. 30, Original
Defendant.
Washington, D, C.Monday, December 11, 1972
The above-entitled matter came on for argument
at 1:09 o’clock p.m.
BEFORE sWARREN E. BURGER, Chief Justice of the United StatesWILLIAM 0. DOUGLAS, Associate JusticeWILLIAM J. BRENNAN, JR., Associate JusticePOTTER STEWART, Associate JusticeBYRON R. WHITE, Associate JusticeTHURGOOD MARSHALL, Associate JusticeHARRY A. BLACKMUN, Associate JusticeLEWIS F. POWELL, JR., Associate JusticeWILLIAM II. REHNQUIST, Associate Justice
APPEARANCES:
CHARLES F. KEELEY, ESQ., 630 Seven Story Office Building, 525 West Ottawa, Lansing, Michigan 48913; for the Plaintiff.
CHARLES S. RAWLINGS, ESQ., State House Annex, Columbus, Ohio 43215; for the Defendant.
2
C O N T E N T SORAL ARGUMENT OF: PAGECharles F. Keeley, Esq., 3
Ob behalf of the Plaintiff.Charles
OnSRawlings, Esq., behalf of the Defendant.
MR. CHIEF JUSTICE BURGER: We will hear arguments
next in Ho. 30, Original, Michigan against Ohio.
Mr. Keeley, you may proceed whenever you are ready.
ORAL ARGUMENT OF CHARLES ?. KEELEY, ESQ.,
ON BEHALF OF THE PLAINTIFF
MS. KEELEYL Mr. Chief Justice, may it please the
Court:
Michigan instituted this action back in 1966
practically on the invitation of Governor Rhodes who indicated
that it would be quicker to solve the controversy between
the north cape of Maumee Bay to the International Boundary.
We filed this matter with this Court. It was referred to
Special Master Maris for hearing. He held several hearings
and finally he made a report. It is this report for which
Michigan has found some exceptions.
The first exception that the State of Michigan
finds is that this Special Master did not correctly relocate
the north cape of Maumee Bay. I would refer you to finding
number 31 in which he said that the location of the north
cape of Maumee Bay can be found by referring to Captain
A. Talcott’s survey.
At that time it was recognised by the Special
Master that that is a correct conclusion as to what the north
cape of Maumee Bay was in 1835. There is absolutely no
4evidence in this record to say that the north cape had
washed away by 1836. So, we would submit that this is the
better method of finding the north cape of Maumee Bay, and
we would also like to cite the matter of Chinoweth v. Haskell,
28 United States Reports, page 92. This case said that
courses and distances should be regarded in locating
boundaries,
Q Would you somewhere along the line enlighten
me as to why this case is very important to the State of Michigan. Are there islands that are at issue or is the land
under the water important some time, or is it just because you
want the matter finally determined?
MR. KEELEY: Mo, I think the reason that this case
began, Your Honor, is because there was oil and gas believed
to have been underneath this water, Additionally, there
have been some other mineral developments that are not in the
record at all that are important to both states.
Q I see. It just had not come clear to me, and
1 wondered what it was all about.
MR. KEELEY; When the Special Master made his
relocation of the north cape of the Maumee Bay, he did not
determine it pursuant to the statute of 1836. That is June 15, 1836. But he relied on the survey by Engineer Ganet when
there was a joint commission provided by the two states to
survey the land boundary. And when he relocated that line,
5he used the same degree of measurement from Post 70 to 71 until it intersected with the south 45 degree angle from the existing sea wall on Turtle island» That is way we believe that our position is correct, because it is contemporary with •the statute of 3,836» There was a statute and the report oi.
which was before the Congress at the time that the s'csu-.ce
was passed»Judge Maris assumed that the line would be north
87 degrees, 49 minutes, and 44 seconds east, and there is no wsy you can do that except by going back to the previous survey and the tsens or tne 20th century» lhis is not where ha should have located» He should have gone back to the survey just prior to the passing of the statute.
Q Did not the Special Master say that Congressdrew the line that you say they drew in 1836 and West Sister
Island would be in Michigan? They certainly did not mean
to do that, did they?MR. KEELEY: What island would be in Michigan?Q West Sister Island. That is what the Master
says.MR. KEELEY: I am not attfare that he did say that,
Mr. Justice.Q Well, I will get the page for you. lie said
it would be a bizarre result. Let me find it. Go ahead, Iwill find it.
eMR. KEF.LEY: Okay , thank you.
We take a very fundamental disagreement with regard
to the fact that the Special Master said—I believe it is on
page 29 of his report—that the statute of .1836, June 15th of
1836, is clear and unambiguous. We feel that this statute
was not clear and unambiguous. We say that the 24th Congress
itself felt the statute was not clear and unambiguous because
only eight days after this statute was enacted, they enacted
another statute to define the northern boundary of the state
of Ohio. And if you look at the statutes, they are almost
identical from the point of vieiv of whether they go northeast
to the International Boundary Line.
Therefore, we believe that you must take another
look at the statute and recreate the history by which it was
enacted. We also put into evidence the witness Ralph Berry
who comes with eminent qualifications. He is a civil
engineer. He is a professor of geodesy at the University of
Michigan and he has testified on page 88 of the record that
this is a matter that it is not clear and unambiguous; you
have to take into consideration all the facts and circum
stances of the case.
Lastly, I would like to have this Court consider the
fact that the Special Master included in his definition of
the boundary line from the north cape to the International
Boundary Line Turtle Island. And in no way was Turtle Island
a part of the statutory language defining this boundary.Turtle Island was a point of reference by Captain A. Talcott to locate the north cape of the Maumee Bay.
Q I thought that that is the only way the Special Master used it. And what he did was to use the old lighthouse which was locatable on Turtle Island within a very small margin of error, and he reversed the northeast course backwardly, what we would call in sailing a 45 degree course, lie reversed it backwardly to a 225 degree course to get the line, is that not right, through the old lighthouse.
MR. KEELEY: That is correct, Your Honor.Q That is the way I understood it.MR. KEELEY: But as far as the statute creating the
boundary line is concerned, that only relocates the north cape of the Maumee Bay. It has nothing to do with the course from the north cape of the Maumee Bay. There is no reference at all in the statute—
Q The reference is to a northeast course, is itnot?
MR. KEELEY: A northeast course, yes.Q And northeast is 45 degrees. So the Special
Master held, and your claim is that it means generally northeastwardly following the previous line; is that not it?
MR. KEELEY: That is correct.Q Which would be just a couple of degrees north
And he maintains thatMR, KEELEY: That is correct
further on the ground that the statute is clear and
unambiguous.
Q In the circumstances of a disagreement of
this kind, do you think there is any perfect way to achieve
a perfect solution?
MR. KEELEY: I would not think there is any perfect
way to achieve anything, except I think you can follow the
statute, if you want to call that a perfect remedy»
Q I am talking now about the physical factors,
not statutory interpretation. What I am getting at is, you
have this kind of a boundary problem. Is it not a matter of
doing the best you can with what you have to work?
ME. KEELEY: Yes, I see what you mean now,
Mr, Chief Justice. If you are going to do that, I suspect that one of the things you might look at would be taking a
perpendicular line to the north cape and draw that as the
line which would separate the two states. But that was not
in the evidence. That is why I would hesitate to call that
to your attention at this time. But I think that would be
one way in which the parties on both sides of the bay would
get what was perhaps given to them by the Congress,
Q Perpendicular to what, Mr. Keeley?
MR. KEELEY: Perpendicular to the bay. That is one
9
of the problems that would be confronted with any determination
of that is to find out what the bay consists of.
Q You mean a line across the mouth of the bay?
MR. KEELEY: That is right* That is approximately
what it would foe. And would it foe from the north cape down
to Kelley's Island or would it be embraced from the end of
the Detroit River down to some other group of islands across
the lake?
X do not have anything more. Thank you.
MR. CHIEF JUSTICE BURGER: Very V7ell.
Mr. Rawlings.
ORAL ARGUMENT OF CHARLES S. RAWLINGS, ESQ.,
ON BEHALF OF THE DEFENDANT
MR. RAWLINGS: Mr. Chief Justice, and may it
please the Court:
The issues involved in the Michigan-Ohio boundary
dispute as it goes through Lake Erie are basically two. The
enabling legislation at issue, of course, is the legislation
of June 15, 1836, which legislation established the northern
boundary line of the State of Ohio and provided for the
admission of the then territory of Michigan into the union
upon the conditions expressed in that statute. One of the
conditions expressed was that Michigan specifically assent to
the boundary line as set forth in the statute. After some
months of debate in the territory of Michigan, Michigan did
10assent in December of .1836 and was admitted to the union in January of 1837. The boundary description, of course, as it effects us in chis particular dispute extends from the southern extremity of Lake Michigan to the most northerly cape of the Maumee Bay, the roost northerly cape as it existed xn 1836 at the time of the enactment of the legislation before us. And from that point northeast to the International Boundary Line between the United States and Canada.
xt is and has been Ohio’s position throughout the course of this controversy that the terra "northeast" used in the 1836 legislation means halfway between north and east or an equal poxnt from each. And in terms of degrees, that would translate into north 45 degrees east. We feel that the statute embodying this terra is clear and free from ambiguity. And if that is so, it is not necessary to look to contemporary historical documentation, such as is in evidence in this particular case, in order to locate the direction of the course from the former north cape to the International Boundary Line. If one accepts Ohio's preraise and the Special Master’s conclusion that northeast means north 45 degrees east, we are still left with the problem of relocating the former position of the north cape of the Maumee Bay, The north cape of the Maumee Bay as it existed in 1836 had been subject to considerable erosion at that time and, of course, no longer occupies its former position.
11In trying to reach a solution to this problem,, ^ve
are aided by several factors. Initially we know that the land
portion of the boundary line between Michigan and Ohio was
monumented and surveyed by joint agreement between the two
states in 1915 and currently terminates at what is known as
Post 71, which is the easternmost terminal monument going
toward the former land position of the north cape as it
existed in 1836. That land boundary has been unchallenged,
so far as we are aware, since 1915 and it does follow a
defined course.
We are further aided—
Q Why did it take until 1915 to have that
surveyed made?
MR. RAWLINGS: The dispute between the two states
was settled in 1836 by virtue of the enabling legislation.
Apparently from 1836 until the early part of the 20th century the territory around Toledo and Lucas County and what
is northwestern Ohio was not fully developed to an extent to
cause too much confusion. The report of the survey and
engineer’s report in 1915 lists as the cause of the survey
the fact that land values have been appreciating rapidly in
the Toledo, Lucas County area, and also states in the course
of its report that there was considerable apprehension among
the citizens because of this increase in land value as to
where the boundary lay. And it was therefore felt necessary
by both the states of Ohio and Michigan to permanently
monument that, particular boundary. In so doing, they
attempted to retrace the boundary as set forth and monumented
by William Harris in the year 1817. The stated reason again
in the 1915 report is that land had bean increasing and
there was enough concern on the part of all landowners in the
area to at this point in time warrant a survey of the land
boundary.
Q This general dispute has a long, long
history, does it not, back to the so-called War of Toledo
when troops from Michigan and troops from Ohio were well on
their way to a confrontation over this boundary dispute?
MR. RAWLINGS: Yes, it does, Mr. Justice Stewart.
The misunderstanding, of course, originally giving rise to
the dispute was due to the incorrect position of the
southern extremity of Lake Michigan, as shown on most of the
maps of the day. And a farther dispute between the states as
to whether the boundary line on the land portion should go
from the southern extremity of Lake Michigan to the north
cape of Maumee Bay or should be a due east line from the
southern extremity of Lake Michigan.
Q It was a strange, to say the least, starting
point, the southern extremity of Lake Michigan, for a boundary
between Ohio and th© State of Michigan.
MR. RAWLINGS: Yes, although when one considers that
13
Ohio and Michigan are part of the five states carved out of
the northwest territory and further considers that at that
point in time Lake Michigan was perhaps the only known
physical feature of that area which could be located other
than the Ohio River on the south and the Pennsylvania line on
the east, it is not too surprising, because Congress
concerned itself with carving out three states, at least,
perhaps five, out of the northwest territory. It is surprising
in a sense that the position of Lake Michigan or at least
its southern extreme, as shown on the prevailing maps of the
day, primarily Mitchell’s Map of 1755, was generally assumed
to be quite valid and showed a latitude of 42 degrees, 30
rainutes north, whereas in fact the position as shown was
considerably north of its true position. This error and this
mistake in what everyone prior to around 1815 had considered a
rather fixed monument from which to draw a boundary was the
cause of considerable historical problems between Ohio and
Michigan and, as ha3 been alluded to, almost caused a war
between the two states. Only the personal intervention of
President Jackson and considerable diplomatic maneuvering
prevented armed conflict between Ohio and Michigan.
Q Mr. Rawlings, would Congress have had any
reason to think that a line between the southern tip of Lake
Michigan and the north cape of Maumee Bay would have been an
east-west line as opposed to perhaps a more northeasterly line
14than it turned out to be?
MB. RAWLINGS: I do not believe so, Your Honor.By the time the legislation of 1836 had been enacted, the true position of the southerly extreme of Lake Michigan was known, and that true position falls south of the north cape, so that a line drawn clue east from the true position of the southerly extreme of Lake Michigan would not strike the north cape at all but would strike several miles below it.
Q You say that Congress knew this in 1836?Ml. RAWLINGS; I believe in 1836 Congress knew the
physical fact of the southern extremity of Lake Michigan much better than they had realised it prior to that time.They had taken into consideration many arguments from senators and representatives from both the State of Ohio and the then Territory of Michigan, and memorials sent to Congress and to the executive branch—most of this documentation is in evidence in this proceeding and before the Special Master.
Q If they knew that the line were northeast, does that not give some plausibility to Michigan's contention that when it speaks of the northeast projection out into the lake that they meant simply a continuation of the land boundary?
MR. RAWLINGS: I do not believe so, Your Honor, because the due east line which was striven for by the Territory of Michigan up until the enactment of the 1836
15legislation was rejected by the Congress of the United States
Congress in so rejecting it, recognised in effect the Ohio
proviso to the Constitution of 1802 and extended the boundary
northeast» It seems to us that it is considerably more
logical to believe that Congress in using the terra "northeast
meant north 45 degrees east than to conclude that they meant
a line which, although true it is about 2 degrees, 10 seconds
north of east, comes very close in practical effect to being
a due east line. I think if Congress had meant to extend the
existing land boundary according to the Talcott survey of
1834, they might well have used language in the legislation appropriate to that purpose, either indicating direct to the
International Boundary Line or 'using phraseology more
appropriate to that end.
The Turtle Island which has been referred to
considerably in the briefs and arguments before the Special
Master and in argument this morning, is a small island
located by Captain Talcott in 1834, and its existence was
known prior to that time at the mouth of the Maumee Bay. It
is located approximately three-quarters of a mile from the
Maurnee Bay, and we know by reference to historical surveys
in evidence in this proceeding that a line drawn north 45
degrees east will pass through the existing circular concrete
sea wall on Turtle Island.We have never contended in the course of this
16
proceeding that the existence, of
determinative of the question of
"northeast." Clearly it is not.
Turtie Is1and is
the meaning of the term
It is relevant? however? xr
one accepts the basic premise that northeast means north 45
degrees east. By reference to historical surveys we know
that a line drawn north 45 degrees east will pass through that island. It is then logical to reverse that known call?
south 45 degrees west,until we strike the projection of the
known and existing land boundary line monumented in 1915. It
is at that point in time that both Ohio and the Special
Master contend one has relocated the north cape of the
Maumee Bay with about as much practicable accuracy as one
can hope for, I think, when one is trying to locate a point
which has not been in existence since well before the middle of the 19th century.
The north cape of the Maumee Bay therefore, under
that theory, would be readily ascertained and Turtle Island
would serve as a convenient fixed boundary or monument
readily seen by anyone sailing in or out of Maumee Bay as a
memorial or monument on the boundary line.
Throughout the course of Michigan’s arguments both
before the Special Master and in this Court, there has been
reference to the survey made by Captain Andrew Talcott in
1834. And, of course, Michigan’s basic position in this
litigation is that that survey or at least a computation or
17an extension of the line of that survey through mathematical
computations of its witness called in this proceeding, should
.be extended in a northeasterly direction about two degrees
north of east to the International Boundary Line» We would
point out that Congress in 1836, when it enacted the
statute providing for the admission of the territory of
Michigan into the union had before it three basic surveys.
It had before it the Harris Survey of 1817, which was drawn
in accordance with the Ohio proviso and went from the
southerly extreme of Lake Michigan to the most northerly cape
of the Maumee Bay. It had before it the Pulton Survey,
which was a due east line drawn really at the request of the
then acting Governor Cass of the Territory of Michigan, who
complained that the Harris Survey was not drawn in accordance
with then existing legislation. And the Talcofct Survey in
1334.
We submit there is nothing in the record of this
case which indicates at all that Congress intended to
extend the Talcott line across the lake. The very title of
the act providing for the Talcott Survey is called "An Act
Preparatory to Adjusting the Northern Boundary of the State
of Ohio.” And apparently Congress, at least as revealed in
the Michigan Exhibit 8, Senate Report on the Territories,
felt it necessary in view of the very difficult situation
which developed between the state and territory and in view
18
of the conflicting claims P to have Captain Talcott ascertain
the latitude and longitude of the points in issue prior to
further considering the arguments' between the state and
territory and coming to a conclusion on the boundary» If
did ccme to a conclusion on that boundary in 1836, and that
conclusion settled the issue in favor of the State of Ohio»
Finally, as we have indicated, if the position is
adopted that the legislation of 1836 is clear on its face,
then there is no need to refer to debates between Senators
and Congressmen or letters addressed to Congress to construe
the meaning of the statute. But if this Court determines
that indeed, in accordance with the claim of Michigan, the
statute is not clear on its face, that there is some
ambiguity, and if there is then a felt need to refer to the
documentation introduced in evidence in this case, we believe
that a review of that documentation will not support the
claim of Michigan. We point, for example, to Michigan
Exhibit 10 in .Evidence in this proceeding, at particularly
pages 4 and 6 of that exhibit, which contain statements by
the then duly authorised representatives of the Territory of
Michigan rejecting admission of their state or their territory
into the union because they could not live with the boundary
line set by Congress in the statute, and noting clearly in
that particular documentation that Michigan knew the import
of the congressional decision, There is reference in that
19
exhibit to
this propos
western end
River and a
the fact that Ohio , if Michigan has to accede to
ition, will obtain jurisdiction over the entire
of Lake Erie, almost to the mouth of the Detroit
hove the River Raisin* Michigan decries this.
They say it is unfair. They indicate it is not in
conformance with the ordinance of 1787«, They indicate it is
not in conformance with the legislation of 1805, by virtue
of which the Territory of Michigan was formed out of Indiana
Territory. But they nonetheless recognized what the meaning
of the legislation is. And after rejecting Congress9 proposal
twice, finally the third time around they agreed to this
proposal with much bitterness and rancor, as is revealed in
the debates, feeling that admission into the union and the
advantages of statehood outweighed losing a position for
which they had striven for some 25 or 30 years prior to that
time.We would also note the fact, as is revealed in the
documentation and evidence in this case, most of it supplied
by Michigan, that under a third of the clue east line
extending from the .southern extremity of Lake Michigan, the
theory that is contained in the statute before the exact
position of the southern extreme of Lake Michigan was known
and under the maps in existence at that time, Ohio would have
gotten almost all of Lake Erie. Clearly, it seemed that
Congress had before it maps of the lake, and there is even
20
>cumentation and evidence in this case
the effect that Ohio might have claimed more than it chose
to claim had it not inserted the proviso indicating that the
boundary should be established to the north cape of the
Maumee Bay. The reason they inserted that proviso, I believe
both states can agree, is because Ohio at that time was
primarily concerned with preserving the Port City of Toledo
and the mouth of the Maumee Bay,, The debate between the
two states prior to 1836 over what was referred to as the
Toledo Strip being concerned with those points.
We further note the testimony which has been
referred to in argument this afternoon and was discussed
extensively In briefing and argument before the Special
Master. That is the testimony of. the geodetic engireor
the University of Michigan,, called on behalf of Michigan.
We indicated at the time to the Special Master and reiterate
our position this afternoon that although the State of Ohio
has no evidence rebutting the mathematical calculations of
Professor Berry as he extends the Talcott line across the
lake to the International Boundary Line. We consider these
calculations totally irrelevant if this Court believes that
the true boundary, as revealed in the language of the statute, is north 45 degrees east.
Much of the testimony concerns the professor's
opinion as to the meaning of the historical documents and
his ultimate conclusion of law on this case, We consider it
.21
nt if he i:: bially 1 is Lin :
aue ncr-cneac t.Finally, we would refer the Court’s attention to
the other exhibits offered by Ohio,, the resolution of the
Ohio General Assembly in 1933 defining the boundary as we
have contended it to be today. The Michigan recisi.cn
resolution of 1945 in which they agreed with the State of
hio . :h inded th . Lon tw« y ir
but it indicates at. least to us that highly placed officials of the State of Michigan at that point in time ware aware of where the boundary lay and agreed with Ohio.
Q Was that in the 1930s?MS., RAWLINGS; Yes. The Ohio General Assembly
passed their resolution in 1933.Q And if was done with the prospect that
Michigan would pass a concurrent resolution?MR. RAWLINGS: Yes, specifically stated in the
1933 resolution is the hope that Michigan would pass a like resolution.
Q And Michigan did so.MR. RAWLINGS: They did in 1945, identical to that
of Ohio. They rescinded that resolution in 1947, two years later. And that is where the matter lay until the filing of this litigation.
We would also refer the Court’s attention
•res il i ' \h flitted jy
of ■ ' nip;
Geodetic Se.Kvi.ere, Both of those maps show the boundary line
bet'-.r a the two states as b- sine north deg:-,:ess east ft*o® a
poi;:>.t located as north caps and notati.ons at :h« ' 3p of those
exhi.bits indicate that the - b ■i ts wes re prepared in
collaboration with mi >f Kighrays oi: the irate
of Michigan,
In summary,
this Court to confirm
issued by Judge Maris
therefore,, we would respectfully urge
the findings and the conclusions
the Special Master in this case, and
to enter a decree in this matter in conformance with the findings and conclusions and recommended decree of the
Special Master,
MR. CHIEF JUSTICE BURGER: Do you have anything further, Mr, Keeley?
MR. KEELEY: I have nothing, Mr. Chief Justice.
MR. CHIEF JUSTICE BURGER: Vary well. The case is
submitted, gentlemen.
[Whereupon, at 1:43 o'clock p.m. the casewas submitted.]
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